Who gets the house in a divorce? Divorce property and assets division guide

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Whether you owned a house, investments, jewelry, the engagement and wedding rings, real estate, vehicles, furniture or even a pet together with your husband or wife, when you breakup, these assets must be divided. Familiarize yourself with some of the most common questions regarding the division of assets in divorce:

  1. Who gets the house in a divorce?
  2. Who owns the engagement and wedding rings in a divorce?
  3. Who gets everything else in a divorce?
  4. What is the difference between community property and equitable distribution?
  5. Marital property vs separate property—what is the difference?
  6. Are assets always split 50-50?

(Also, here is a list of common terms to familiarize yourself with regarding property division in a divorce.)

Divorce property division: Who gets the house in a divorce?

The marital home is most commonly considered an asset that is divided equally in divorce. Aside from situations where one spouse pays for the house before marriage and keeps it after, specific marital circumstances, including children and finances, usually dictate the fate of the couple’s home. 

The best-case scenario is an amicable divorce, in which you both decide together the fate of the home.

Who has to leave the house in a divorce and who gets to stay?

In some states and extreme, high-conflict situations, if one spouse leaves the marital home for any reason — including being arrested for a false domestic violence report — he or she loses all rights to the marital home. In most divorce cases that are at all amicable, these common scenarios will typically apply to the house after divorce. 

  • One spouse buys out the other’s share of the home’s equity like through a cash-out refi
  • If the house is underwater—in which the mortgage is larger than the value of the home—then the house may be sold, and the remaining debt split between the spouses
  • If they can afford it, the couple may choose for one parent to stay in the home to maintain a routine and school district for any children they have together
  • Continue to co-own the home. You can then rent out the property and share any profits, use it as an Airbnb or other short-term rental, ride out an economic downturn to hope to recoup any losses or increase profits in a future sale, or one of the spouses can continue to live in the home, with an agreement about how any sale proceeds would be divided in the future.

Legal separation vs divorce — what's the difference?

What to do with a house after divorce?

As much as you may love your home with all its charm and memories, you may want to consider selling it. 

Why you should stay:

  • You can afford it on your own, without relying on spousal support.
  • You stand to lose a lot of money if you walk away. 
  • It’s a good investment. 
  • Tax benefits.
  • Emotionally, keeping the house makes sense (for you and your kids). 

Why you should sell your house in a divorce: 

  • You can’t afford it.
  • Selling your house will help you move on.
  • Starting fresh is empowering.
  • You want to set a good financial example for your kids by being fiscally responsible. 
  • You want to show your kids what it means to be resilient. Change is good! Living within your means is even better!

One way to keep the house if you cannot afford to buy it from your spouse is with a cash-out refinance with a company Credible. A cash-out refinance is when you apply for a new mortgage that is more than what you owe. The extra money is then used to buy the other’s share, leaving you the sole owner. 

Leaving your spouse? Divorce checklists

How do I get the house in a divorce? Really want to keep your house in your divorce?

If you really, really want to keep your house after divorce here are a few hard and fast rules:

  • If one of the spouses owned the home before the marriage, it typically belongs to them.
  • If the house or condo or co-op are in either the husband or wife’s name, and the mortgage is in that spouse’s name, they are most likely to be in position to claim it. 

Otherwise, the question of keeping the house relies on a combination of these factors:

  • Who wants the house?
  • Who can afford the house easiest?
  • If refinancing is in order, who is most likely to qualify for a mortgage?
  • Is there equity in the home? If so, how will that be divided in a fair way? 
  • Are you underwater with the mortgage? Who wants to assume that debt? Who can afford to assume that debt?

And then there is the big question:

Should either of you keep it? Would it make more financial sense to sell the home, share any profits, and move on with both of your lives, separately, in new and different homes not straddled with old memories, broken dreams and promises?

There are pros and cons to keeping the house in the divorce. Which is right for you?

Consider these horror stories from Reddit as you proceed.

Reasons to keep the house in your divorce:

  • You can afford it easily on your own. This means that after any refinance, buy-out, you can easily afford monthly mortgage payments, taxes, insurance and upkeep on your own income. If you require alimony or child support to stay in the address, that is too risky.
    You can create a single-mom budget easily on Tiller, an easy-to-use budgeting app.
  • The home is the biggest financial asset for most couples. You walk away from that, you may lose a lot of assets — even if he buys you out. Why?
  • Historically, real estate has been a more stable investment when compared with stocks (recent years being an exception). Between 1978 and 2004, real estate appreciated an average of 8.6 percent per year. While stocks returned more than 13 percent during that time, they also saw more peaks and valleys. True, stocks grew more. HOWEVER, that is just appreciation — not including the wealth-building associated with paying off a mortgage, or the tax advantages.
  • Because your household income is very likely to be lower post-divorce in the short-term, the tax write-offs like mortgage interest and property taxes will be even more valuable post-divorce.  Plus, if you were to sell your home, you can likely pocket most or all of the profits tax-free. Only a few investment vehicles provide such a tax perk.
  • It may make sense to keep the house if it is easy to maintain on your own, without too much physical, emotional or financial cost.
  • You can make an argument for keeping in the event that it will help facilitate peaceful co-parenting. For example, if staying put means you can live closer to your now-ex, or closer to schools or each of your jobs, which makes everyone’s life more convenient, ‘happy co-parenting’ can be a reason to argue for staying put. Rules for co-parenting with even the most toxic ex
  • The emotional reasons to keep the house include providing a measure of stability for you and your kids during a tumultuous time. This includes staying in the same schools and close to friends and neighbors who provided emotional and practical support.

However, there are lots of very good reasons to let your marital home go — whether to your ex, or to sell it on the market. One of the biggest mistakes I have seen in my work, as well as have heard from divorce attorneys, is women’s insistence on keeping the marital home in divorce — to her detriment.

5 tips for a quick divorce

Reasons NOT to keep the house in divorce:

  • You can’t afford it. Accepting that your income is now lower after divorce, and therefore your lifestyle must change, is often very difficult — especially for the lesser-earning spouse, who unfortunately is usually the woman. Going into debt, facing losing that very home you so desperately want to hang on to, and the emotional turmoil that financial stress induces is just bad news. Don’t.
  • Selling helps you move on. Houses are emotional things. That house likely represented a family and life that you wanted very much to succeed — but things turned out differently. Nothing like new real estate (and furnishings!) to relaunch your new life, and put your old one behind you. The same goes for when you sell an engagement ring or some other jewelry item that you shared.
  • A new home is empowering! Whether you are purchasing a new house or renting a place on your own, moms tell me that doing this solo is one of the most empowering things they’ve ever done.
  • It (might) teach your kids financial responsibility. Because your home is likely your biggest financial asset, you should treat it with as little emotion as possible. Compromising your finances, emotional well-being and good sense for the sake of keeping a house you really like is not a good financial example for your kids.
  • Selling (might) teach your children emotional resistance. Sometimes life sucks giant, hairy donkey balls. It just does. Divorce is usually like that. But showing a measure of grace, moving on, and making wise decisions for your whole family in the face of rotten times is one of the greatest gifts you can give your kids.
  • You need the money and need to sell the house.

Sell your house for cash in 24 hours? What you need to know

Really want to keep your house in your divorce? How to keep the house in a divorce using a cash-out refinance

When I got divorced in NYC 10 years ago, one of the biggest sources of stress — and confusion — was where I would live, and what my ex and I would do with our home. When he moved out, I stayed in the New York City apartment we’d bought together a few years before. There was a lot of equity in it, I felt like it was a good investment, I loved the home, neighborhood and building, and I didn’t want to move.

I contacted a few mortgage brokers to explore what my options were. Based on my income, the home value, terms of my divorce (which, in my case was that we split any equity in the home), a cash-out refinance was my best option. Since then, I have been able to finalize my divorce in a fair way, now own my home 100 percent in my name, and have a payment I can easily afford — plus a nice tax deduction every year.

What is a cash-out refinance?

A cash-out refinance means that you apply for and receive a new mortgage for more than you owe. Typically, you can cash-out up to 85 percent of your home’s value. This was a great option for me, because I owed my ex a lot of money — which I did not have at the time — there was enough equity in the home, interest rates were lower than when we bought the home, and my income was enough so that I could comfortably afford the new payments.

Here is an example:

Let’s say there is $200,000 left on your mortgage, and your home is now worth $350,000. With a cash-out refinance, you might refinance up to 85 percent of your home’s value ($297,500) and take part of the $97,500 difference back in cash to spend however you like — including paying your ex his share of the divorce settlement.

Pros of a cash-out refinance during a divorce:

  • Easy way to access cash during a time when you may not have a lot of it
  • Interest rates on mortgages tend to be lower than if you were to do a home equity line of credit, home equity loan, personal loan, or credit card advance.
  • Interest rates on your first mortgage are usually tax-deductible
  • You can keep your home and don’t have to move, which can be important at a time when everything in your and your kids’ lives is in flux.
  • The mortgage is now in your name only, removing your ex from the debt and deed — which can feel really powerful for you, and be an important step in separating from your marriage and starting your life anew.

Cons of a cash-out refinance during divorce:

  • Compared with a home-equity line of credit or home equity loan, closing costs can be higher
  • Signing a new mortgage may extend the period for which you pay for the home — even if monthly payments are the same or lower (this happened to me).
  • Signing a new mortgage may increase the overall sum you will pay for the property if interest rates have increased since you first financed it.
  • If the refinance means you end up with less than 20 percent equity in your property, you may need to add PMI, or private mortgage insurance, onto your loan.

How to qualify for a cash-out refinance in your divorce

The qualifications for a cash-out refinance mortgage are the same as a new mortgage, in most cases. Because you are now divorced and seeking to own the home in your name only, the qualifications are for you as a single person (not as a couple):

Who can qualify for a cash-out refinance?

Since a cash-out refinance is essentially the same as taking out a new mortgage, requirements for qualifying are similar. Homeowners who own their homes and meet the following criteria may qualify:

  • Good or excellent credit (FICO score of 670+)
  • Significant home equity — at least 20 percent of the home’s value
  • Ability to repay the loan
  • A debt-to-income ratio — including the new mortgage payment — approved by the lender.

If you choose to refinance the home in order to buy out your ex, Credible will get you pre-qualified in 3 minutes, provides offers shortly after, and allows you to upload all documents online. Get prequalified for a mortgage refinance in 3 minutes with Credible now >>

Other notes about cash-out refinance in divorce:

During divorce, finances are often very tight — where there was once one household with two-income or one income plus a full-time person caring for the home and kids — there are now two households, two sets of insurance premiums, and increased need for child care — not to mention legal fees.

Obtaining a new mortgage is a big commitment. Even though you may be emotionally tied to your current home, staying put is not always the best answer. Even if your mortgage payment stays the same after the refinance, you may not be able to afford it without stress and scramble every month. Also, while the thought of leaving your home may feel traumatic today, you may feel differently in months and years to come. In fact, you may want to break free from old memories and expectations that are attached to the home.

Jenny Hoff at CreditCards.com interviewed me about my own story of overcoming my fears, hang-ups and neuroses when it comes to single motherhood and money. It is also about overcoming your own barriers that keep you stuck…

A refinance in a divorce works like this:

If the house was in both spouses’ names, or in the name of other spouse (your husband, for example), you may want to refinance the home so that your name only is on the deed and mortgage. This relieves the other spouse from any financial or legal responsibility of the home, and can give that other spouse their share of the equity in the home.

You may also be able to get cash out to pay off credit card debt, student loans, medical debt, or your divorce lawyer. 

To see what your refinance options are, based on your credit score and income, Credible lets you learn your options in less than 3 minutes.

  1. Go to Credible.com
  2. Fill out a single form with information about your income, credit score, and information about your home.
  3. Compare your options.
  4. Get on with your life!

Refinance your home with Credible now >>

Really want to sell your house after your divorce?

Of course, you may want to sell your house, and that could very well be the best decision. Reasons include:

  • You can’t afford the house on your income alone
  • You want to downsize into something less expensive 
  • You want to downsize into a condo / town-house / smaller digs because it is easier 
  • You’re relocating for a job
  • You’re relocating for a boyfriend
  • You’re relocating to be closer to friends / family 
  • You want a fresh start in a new place of your own
  • You just want to sell the damn house, OK?

You don’t have to explain yourself to anyone! 

If you want to sell fast, you can sell your house for cash to Offerpad.com, which has a Better Business Bureau rating of A+.

offerpad sell home cash bbb

How to sell your divorce home for cash to Offerpad.com

  1. Go to Offerpad.com
  2. Input all the info about your home — videos and photos are a plus! 
  3. Get a cash offer from Offerpad’s experts within 24 hours 
  4. No seller concessions
  5. Close within 24 hours for cash offers — or extend up to 60 days

Offerpad promises these benefits:

  • No showings!
  • Closing dates from 24-hours up to 90 days — your choice
  • 3- to 60-day extended stay options
  • A free local move within 50 miles
  • Listing services if you choose
  • No overlap ownership costs (paying mortgage on two homes while you move)

Offerpad’s service fees are typically 7%, vs the usual 6% realtor fee.

Get a quote from Offerpad now >>

You can use your cash to pay off debt, buy a new home, invest in a different career or side gig, save for retirement or your kids’ education. 13 steps to financial success for single moms

Divorce property division: Who owns the engagement and wedding rings in a divorce?

Jewelry is marital property if purchased during the marriage. If the jewelry in question was a gift or a form of inheritance, it’s separate property and not divisible. Jewelry acquired before marriage is also separate property. This can include a watch given as an engagement or anniversary gift to a man, or fine jewelry given to the wife as a gift.

Gifts between spouses during marriage are marital property and must be accounted for unless the spouse who gave the gift explicitly states the gift is the separate property of the receiving spouse. 

However, if a ring is a family heirloom, some courts may order the receiving spouse to return it to its original owner.

How to sell an engagement ring or wedding ring after divorce

CashforGoldUSA buys gold, silver, and diamonds. The company appraises each piece and will pay you in 24 hours, and is a great, fast and reputable way to sell lower-end jewelry worth $1,000 or less. CashforGoldUSA has a A+ BBB rating, and was found by Fox News to pay out three-times its competitors for mail-in gold sales. CashforGoldUSA pays within 24 hours.

Worthy is a unique and trusted online marketplace for fine diamonds, bracelets, Tiffany jewelry, engagement rings, watches and timepieces, earrings and more. Worthy streamlines the jewelry auction process to provide buyers and sellers with a safe experience, and guarantees you receive the highest price possible for your item. Worthy only accepts items that will sell for $1,000, which typically means the center gemstone or diamond is at least .5 carats.

Learn more about how Worthy works in this post, or get a fast, free estimate on their site now.

Divorce property division: Who gets everything else in a divorce?

Divorce law varies by state, and every divorce differs. If you wonder who will get what when you and your spouse break up, the answer will depend on many factors, including where you live, how long you were married, and what each of you brought to the marriage in terms of property.

Most of these questions should be addressed with your divorce attorney or divorce mediator.

However, if you have an uncontested divorce, in which you and your soon-to-be ex amicably agree to most of the terms of the split, do not have complicated finances and agree on how time will be shared with any children you have, then you may use a DIY divorce service like 3StepDivorce. Read our 3 Step Divorce review here >>Even so, you may have questions about how property and debt are divided in a divorce. Here are some guidelines for what you can expect.

While this post deals with the property of divorce, here is what you need to know about the kids and child support in divorce.

Who gets the car in a divorce?

Vehicles purchased during the marriage are typically considered marital property and the value of which are divided according to state laws — either equally or equitably. Exceptions include whether a vehicle is purchased by a company owned by one spouse.

Typically, if there are two vehicles, each spouse takes one, and any outstanding debt on the car note is factored into the final divorce settlement, or otherwise factored into other assets and debts.

For some women, buying their own first car, without the help of a man’s advice or money, is a powerful post-divorce experience.

Who gets the dog in a divorce? 

Legally animals, including dogs, cats and other pets, are property. Following a divorce, the pet belongs to either one spouse or the other. Traditionally, there is no “custody” of pets.

There is, however, a recent trend in courts to view pets as more than property. In Illinois, Alaska, and California, divorce courts consider the best interests of the pet. If one spouse bought a pet, got married, and let the other spouse take care of the pet, then the other spouse could make a legal argument in those states that the pet is their joint property. 

But for now, in most states, pet ownership is dictated by simpler property laws. Pets are given to the spouse who paid for or adopted the pet. If the pet was paid for with joint funds, then the spouse who initiated the purchase receives the pet.

In community property states, if your pet cannot be considered separate property, you may still have a few options for maintaining a relationship with the pet. It is possible to co-own a pet, and you can draft provisions dictating the sharing of expenses related to its care as well as a visitation schedule  You can also try to obtain full ownership of the pet by giving up other property in exchange. Anything is negotiable.

Divorce property division: What else should I ask for in a divorce settlement?

The adage “If you don’t ask, you don’t get” applies to your divorce settlement. If you neglect to ask for what you want while negotiating, you may never have the chance. Although you can go back to court post-judgment, it’s a much safer bet, not to mention less expensive, to make your divorce agreement as inclusive as possible from the get-go.

Here are the top points to negotiate in your divorce, all of which are outlined in this free divorce settlement agreement:

  • Time-sharing and legal decisions for any children you have
  • The home, or other real estate
  • Any child support or cost-sharing
  • Retirement and other investments
  • Health insurance coverage
  • Ownership of any cars or vehicles
  • Ongoing mediation or therapy for the whole family Best online therapy sites for moms

What you need to know about insurance in divorce

In states with no-fault divorce laws, you’ll be entitled to equitable distribution. That means either the fair amount of marital property you acquired during the marriage or half of the community property acquired during the marriage, depending on your state. You may also be entitled to child support, typically calculated according to a simple formula. These are the biggies. Others are not necessarily obvious, so think about what your expenses are today and what they will be down the road, then speak up. 

How to decide whether or not to get divorced — pros, cons and how to tell your wife or husband you want a divorce.

How to start filing for divorce — the basics

Divorce property division: Are assets always split 50-50? Is the wife entitled to half of everything in divorce?

In community property states, theoretically, the answer is yes—assets acquired during the term of the marriage are split 50-50. 

In practice, marital property cannot always be divided exactly 50/50. Typically, spouses and attorneys and sometimes judges work together to divide the property in a way that complies with standard practices in that jurisdiction, as well as — hopefully — is fair and reasonable. Spouses may still also maintain some personal property. 

Typically, all the couple’s marital assets are listed, and a dollar value assigned to each. Some of this money may be tied up in a retirement account, which would require tax penalties should it be withdrawn, and other assets are in the form of equity in a house, which can be hard to withdraw without selling the home.

In these cases, the goal is for each party to receive in the divorce equitable assets, which may mean one spouse keeps a larger share of a retirement account, while the other keeps rights to the marital home.

In equitable distribution states, the court divides marital property in whichever way it sees as fair, not necessarily equal. 

In community property states, each spouse gets half of all assets, regardless of who earned the money.

Other considerations in a divorce include income going forward. This is typically paid out through alimony and/or child support, depending on the income of each spouse, custody sharing of the children, and earning potential of the husband and wife.

Increasingly, as equally shared co-parenting is more common, and women earn more and the pay gap shrinks, more women are paying child support and alimony.

Also more common today is arrangements in which parents split time with the kids 50-50 and each are financially responsible for themselves.

Divorce property division: What is the difference between community property and equitable distribution?

In summary, community property states split any assets or debts acquired during the marriage 50/50, while equitable distribution states divide the assets and debt equitably — but not necessarily equally.

For example, in a community property state like Arizona, any assets in the house would be split 50/50. In an equitable distribution state like Illinois, the equity in a home would be split according to various factors, including:

  • How much money each spouse put towards the downpayment, mortgage payments, or renovations.
  • Whether either spouse’s family contributed to the downpayment
  • Etc.

Obviously, this gets very messy, and often judges and attorneys will encourage couples to simply split any marital asset 50/50 for the sake of speed and minimizing acrimony in the divorce.

Asset distribution by state

Each state has its own laws regarding property division. You and your spouse can agree to divide your property any way you like, but this is how a court in your state will likely rule:

How is property divided in a divorce in Alabama?

Alabama is not a community property state, so marital property will be split according to a doctrine of “equitable distribution” which tasks the court with determining a fair division of property. Though this may result in an even 50/50 division of property, this is not guaranteed. In Alabama, property acquired before your marriage is considered separate property and is not subject to division during your divorce.

How is property divided in a divorce in Alaska?

Alaska is not a community property state, which means that any marital property will be divided according to a doctrine of equitable distribution. Under this doctrine, the courts are responsible for determining what a fair division of property will look like. Though this may result in an even 50/50 split of all marital assets and debt, this isn't guaranteed; the court may decide that an uneven division is actually more fair. By Alaskan law, property and debt acquired before a marriage is considered to be separate or individual property, and is not subject to division during your divorce.

Alaskan law is unique in that it allows either spouse to opt-in and make their property community property if they so choose. If you choose to go this route and make your marital property community property, then it will be split 50/50 between you and your spouse.

How is property divided in a divorce in Arizona?

Arizona is one of the few states with a community property law that defaults to both spouses equally owning all property and debt acquired during a marriage. This can be overridden by a prenup, or mutual agreement.

How is property divided in a divorce in Arkansas?

Arkansas is not a community property state. This means that any marital property (property that is acquired over the course of the marriage) is subject to equitable distribution. Though equitable distribution may result in an even 50/50 split of all assets, debt, and property, this is not guaranteed. The courts will weigh a variety of factors in determining what equitable distribution of property looks like for your case.

How is property divided in a divorce in California?

California is a community-property state, so any assets or debt acquired during the marriage is split 50/50 at the time of divorce. California also adheres to quasi-community property laws, in that any assets or debts acquired outside the state of California during the marriage are also subject to California's community property laws if the divorce takes place in California.

How is property divided in a divorce in Colorado?

Colorado is not a community property state. This means that if you and your spouse cannot come to an agreement as to how marital property should be divided, the court will use a doctrine of equitable distribution to come to its own decision about what a fair division of property will look like. Though this may result in an even 50/50 split of marital property, including assets and debts, that is not guaranteed. The court will use a number of factors, including the length of the marriage and each spouse’s contribution to the acquisition of marital property, to determine what a “fair” division looks like.

In Colorado, separate property, which includes those assets that each spouse acquired before the marriage, as well as property acquired by gift or inheritance, is not typically subject to division during divorce.

How is property divided in a divorce in Connecticut?

Connecticut is an equitable distribution state, not a community property state. This means that if you and your spouse do not come to an agreement on the division of marital property, the court will decide what a fair division of property looks like for your marriage. It is possible, but not guaranteed, that this might result in an even 50/50 split of all assets and debt.

In Connecticut, it's important to note that divorce courts have the authority to divide separate property in cases where it is deemed that doing so would be equitable. This is different from how many states treat separate property.

How is property divided in a divorce in Delaware?

Delaware is not a community property state, but instead follows the principle of equitable distribution. This means that when divorcing spouses cannot come to an agreement about how they will divide property, the courts will be tasked with determining what is “fair” for the marriage.

Equitable division of property might result in a 50/50 split of all assets, but this is never guaranteed. Marital debt is divided in a likewise fashion. In Delaware, separate property which was acquired by either you or your spouse before the marriage is typically not divided during a divorce.

How is property divided in a divorce in Florida?

Florida is an equitable distribution state, so property and debt acquired during the marriage are split relevant to how it was acquired.

How is property divided in a divorce in Georgia?

Georgia is an equitable distribution state. This means that if you and your spouse fail to reach an agreement on how to divide marital property (i.e., property acquired during the marriage), then the task will fall to the court, which will be tasked with dividing the property fairly — though not necessarily 50/50.

Typically, the judge will take a number of factors into consideration when dividing property, and marital debt is divided in the same way.

Separate property in Georgia is not typically subject to division during divorce. Generally speaking, you leave a marriage with what you brought into it.

How is property divided in a divorce in Hawaii?

Hawaii is an equitable division state, so assets and debts acquired during the marriage are divided equally between the spouses, regardless of which spouse acquired it or whose name is on it. Exceptions include inheritances acquired during the marriage.

How is property divided in a divorce in Idaho?

Idaho is a community property state. This means that all property and assets acquired during the marriage belongs equally to both spouses, and must be split equally during divorce. Property acquired by each spouse before the marriage, as well as certain assets acquired during the marriage (such as gifts and inheritance) are considered separate property and are not subject to division during divorce in Idaho.

Marital debt is likewise considered community debt, and is split equally between both spouses in Idaho.

How is property divided in a divorce in Illinois?

Illinois is an equitable distribution state, not a community property state. This means that instead of automatically dividing all marital property and debts in half, the courts will instead be tasked with determining a fair division. Though it is possible that this will result in a 50/50 split of all assets, that outcome is not guaranteed.

Any property that was acquired by either spouse before the marriage is considered separate property, and is not typically subject to division during divorce in Illinois. Some property acquired during the divorce can also be considered separate property, such as inheritance and gifts.

How is property divided in a divorce in Indiana?

Indiana is not a community property state. This means that if you and your spouse can't reach an agreement on how marital property should be divided, then the task will fall to a judge, who will follow the doctrine of equitable distribution to determine what fair division looks like.

Though Indiana courts often presume that an equal 50/50 division of marital property is fair, this is not guaranteed, and judges may decide that an uneven division of property is fair.

As in other states, Indiana law recognizes both marital property (property acquired together during the marriage) and separate property (property acquired by spouses before the marriage). It is important to note, however, that Indiana judges have the power to divide separate property during a divorce as well as marital property. This is different from many other states.

How is property divided in a divorce in Iowa?

Iowa is not a community property state, but instead follows the rules of equitable distribution. This means that a judge will be tasked with determining what a fair distribution of marital property looks like, should you and your spouse be unwilling or unable to reach your own agreement.

Equitable distribution can sometimes result in an even 50/50 split of all marital assets and debt, but this is not always guaranteed or practical.

Any property acquired by either spouse before the marriage is considered separate property, which is not typically subject to division during a divorce. Separate property also includes certain assets acquired during the marriage, such as an inheritance or certain gifts.

How is property divided in a divorce in Kansas?

Kansas is an equitable distribution state, which means that if you and your spouse cannot come to an agreement on how you will divide your marital property, then a judge will have the final say over what fair division looks like.

Equitable division can sometimes be an even 50/50 split of all marital assets and debt, but this is never guaranteed. The judge may decide that a non-equal division is in fact the most fair outcome.

In Kansas, property acquired before the marriage is considered separate and is typically not divided during the divorce.

How is property divided in a divorce in Kentucky?

Kentucky is an equitable distribution / common law state, which means marital property and debt are not automatically assumed to be owned by both spouses and therefore should be divided equally in a divorce.

How is property divided in a divorce in Louisiana?

Louisiana is a community property state. This means that all marital property (which typically includes assets, property, and debt acquired during the marriage) belong equally to both spouses, and must be divided equally during the divorce.

How is property divided in a divorce in Maine?

Maine is not a community property state. Instead, marital property is divided according to equitable distribution. This means that in cases where both spouses cannot come to an agreement on the division of marital property, then it will be up to the courts to decide what a fair and equitable division of property looks like.

While equitable distribution can occasionally result in an even 50/50 division of all assets, the Maine judiciary specifically states that “equitable division of marital property does not necessarily mean that property will be divided equally.”

In Maine, separate property is not typically divided during divorce.

How is property divided in a divorce in Maryland?

In Maryland, marital property is divided according to a statute of equitable distribution. This means that when spouses cannot come to an agreement as to how marital property will be divided, the courts will determine what is fair.

Though this can sometimes result in an even 50/50 division of all assets and debts, because Maryland is not a community property state, this is not a guarantee. The presiding judge will take a number of factors into consideration when determining what equitable distribution looks like for your marriage.

Separate property is typically not subject to division during divorce. This means that any property or debt acquired by each spouse before the marriage, as well any inheritance and gifts acquired by a spouse during the marriage, will most likely remain their own after the divorce is finalized.

How is property divided in a divorce in Massachusetts?

Massachusetts is not a community property state. As such, marital property is divided according to a principle of equitable distribution, in which the judge to decide what a fair and equitable division looks like.

Sometimes, equitable distribution will result in an equal 50/50 division of all property and assets, but this is not guaranteed.

Though separate property (i.e., property acquired by each spouse prior to the marriage) is typically not subject to division during a divorce, it’s important to note that in Massachusetts the courts do have the authority to consider separate property for division if it is deemed that doing so would be equitable.

How is property divided in a divorce in Michigan?

Michigan is an equitable distribution state, not a community property state. This means that if divorcing spouses are unable to come to terms as to how marital property and debt will be divided, the courts will make a determination based upon what is “fair” in the eyes of the court.

Equitable distribution may result in an even 50/50 split of all marital property and debt between both spouses, and this is not uncommon in Michigan. However, it is not guaranteed, and the judge will take many factors, including whether or not one or both parties were at fault during the divorce, into consideration when determining what fair division looks like.

In Michigan, separate property is typically not subject to division during divorce.

How is property divided in a divorce in Minnesota?

Minnesota is not a community property state. Instead, it follows the doctrine of equitable distribution. This means that if spouses are unable to come to an agreement as to how they will divide marital property during a divorce, the judge will determine what division looks like based on what they deem to be fair.

This might result in an even split of all marital assets and debt, and this is not an uncommon outcome in Minnesota. That being said, unlike in community property states, this is not guaranteed. The courts will consider many different factors in determining what fair division looks like.

In Minnesota, personal property (also known as separate property) refers to anything that was acquired by either spouse before the marriage, as well as assets like inheritance or gifts acquired during the marriage. This property is typically not subject to division during a divorce.

How is property divided in a divorce in Mississippi?

Mississippi is not a community property state. Instead, marital property in Mississippi is divided according to a principle of equitable distribution in which the court will need to make a decision as to what fair division looks like.

While it is possible for equitable distribution to result in an even 50/50 split of all marital assets, debt, and property, this is not guaranteed. Instead, the judge maintains sole discretion in determining how property will be divided fairly, even if that does not result in a 50/50 split. The courts will take many factors into consideration when determining this division.

In Mississippi, separate property, including any assets acquired by either spouse before the marriage, is typically not subject to division during a divorce.

How is property divided in a divorce in Missouri?

Missouri is an equitable distribution state, which means marital property is divided in a way that is fair, but not necessarily 50/50.

How is property divided in a divorce in Montana?

Montana is an equitable distribution state, not a community property state. This means that during a divorce, the courts will decide what a fair division of marital property and debts looks like if the couple is unable to come to an agreement themselves.

Though it's possible that equitable distribution will lead to an even 50/50 split in all marital property and debt, but this is not guaranteed.

In many equitable distribution states, separate property (property acquired by each spouse before the marriage) is typically not subject to division during a divorce. In Montana, however, separate property may be divided between both spouses if the courts deem that to be the fairest path.

How is property divided in a divorce in Nebraska?

Nebraska is not a community property state, but an equitable distribution state. This means that the courts will create a settlement that they consider to be fair if the divorcing spouses cannot reach their own agreement about how they will divide marital property and debt.

In Nebraska, equitable distribution may result in an even 50/50 division of all marital property, assets, and debt, but this is no guarantee.

Separate property which was acquired by each spouse before the marriage (as well as certain property such as gifts and inheritance acquired during the marriage) are typically not subject to division during a divorce in Nebraska.

How is property divided in a divorce in Nevada?

Nevada is a community property state. This means that any property, assets, or debt acquired by either spouse during the marriage is considered to belong equally to both spouses, and will be split evenly during a divorce. Any property acquired before the marriage is considered separate property and is not subject to division in Nevada.

How is property divided in a divorce in New Hampshire?

New Hampshire is an equitable distribution state. This means that if you and your spouse cannot come to an agreement as to how you will divide property during your divorce, then the decision will ultimately fall to a judge, who will consider a variety of factors in determining what a “fair” division looks like.

It’s possible that equitable division will result in an equal 50/50 split of all property and debt, but because New Hampshire is not a community property state, this isn’t guaranteed.

In many equitable distribution states, only marital property (i.e., property acquired during a marriage) is subject to division during a divorce. Separate property which each spouse acquired before the marriage, as well as certain other assets, is typically not divided. In New Hampshire, this isn’t the case; the court has the authority to divide both marital and separate property if it deems it to be an equitable decision.

How is property divided in a divorce in New Jersey?

New Jersey is an equitable distribution state, meaning assets and debts are not automatically split 50/50 but in a way that is fair.

How is property divided in a divorce in New Mexico?

New Mexico is a community property state, which means that any marital property and debt belongs equally to both spouses and must be divided equally during a divorce.

How is property divided in a divorce in New York?

New York is an equitable distribution state, which means that the marital property will be divided between spouses in a way that a judge considers fair — not necessarily 50-50. Factors include what each of you contributed during the divorce in terms of money earned, and care of any children, as well as what each of you needs to forward after the marriage.

New York courts consider marital debt similarly to marital property: Marital debt is that which is incurred during the marriage (though once you are legally separated, you are likely protected from any more debt that your spouse takes on — and vice versa). In an equitable property state like New York, debt is divided by what is fair — not 50/50.

How is property divided in a divorce in North Carolina?

North Carolina is not a community property state. Instead, the state follows the equitable distribution model of property division, which divides marital property and debts in a manner that the court sees fit. In North Carolina, the courts typically begin under the presumption that marital property should be splitted equally, and then adjust this calculation based on a number of different factors.

While marital property may end up divided equally in North Carolina, there is no guarantee that this will be the end result under current law.

How is property divided in a divorce in North Dakota?

North Dakota is an equitable distribution state, not a community property state. This means that, during divorce, marital property and debts are divided in a manner that the court deems fair and equitable. While this may result in an even split of all property, that outcome is not guaranteed by North Dakota law.

How is property divided in a divorce in Ohio?

Ohio is not a community property state. This means that instead of a guaranteed 50/50 split of all marital property and debts, the courts use a model of equitable distribution to determine what is fairest to both parties. While the result may be a 50/50 split of all marital property, this is not guaranteed.

While in many states separate property is not subject to division during divorce proceedings, Ohio divorce law differs in that it does allow the court to divide separate property if doing so would be equitable.

How is property divided in a divorce in Oklahoma?

Oklahoma is not a community property state, and instead follows a principle of equitable distribution. This means that the courts will decide how to divide marital property during a divorce based upon what is deemed fair. Though a 50/50 split of all marital property and debt can be the final result, nothing in Oklahoma’s law states that that is a guaranteed outcome.

How is property divided in a divorce in Oregon?

Oregon is an equitable distribution state, not a community property state. This means that, during a divorce, all marital property and debts will be divided between both spouses according to whatever the courts deem fair and equitable. There is a possibility, but no guarantee, that this will result in the even 50/50 split of all marital property.

How is property divided in a divorce in Pennsylvania?

Like the majority of states, Pennsylvania is an equitable distribution state and not a community property state. This means that when spouses divorce in Pennsylvania, the courts are responsible for determining the fairest and most equitable way of dividing all marital property and debt. While it may be possible that the end result will be an even 50/50 split of all property between both spouses, this is not guaranteed in the same way as it would be in a community property state.

How is property divided in a divorce in Rhode Island?

In Rhode Island, during a divorce marital property is divided according to a principle of equitable distribution. Whereas community property states divide all marital property and debts evenly (50/50), equitable distribution states give the final decision of property division to the judge, who will consider a number of factors in deciding what is fair. Though equitable distribution can result in an even 50/50 split in Rhode Island, this is not guaranteed by the state’s laws.

How is property divided in a divorce in South Carolina?

South Carolina is not a community property state. This means that marital property and debts are not automatically divided 50/50 between both spouses. Instead, the state follows the model of equitable distribution, which allows the courts to decide what is fair and equitable. Though equitable distribution can result in an even split of all property, it isn’t guaranteed that this will be the final result.

How is property divided in a divorce in South Dakota?

South Dakota is an “all property” state, or equitable division of property state, which means property and debt are divided according to what is fair, not 50/50.

How is property divided in a divorce in Tennessee?

Tennessee is an equitable distribution state. Whereas marital property and debts are divided evenly in a community property state, in an equitable distribution state like Tennessee the courts will decide what is equitable and fair. The end result will sometimes be an equal 50/50 split of all marital property and debt, but this is not guaranteed under law as it would be in a community property state.

How is property divided in a divorce in Texas?

Texas is a “community property” state, which means that anything acquired during the marriage belongs to both parties. (There are some exceptions, such as property given as a gift to one spouse.) Among the assets you’ll need to divide:

  • The equity in your house(s) and contents
  • Investments and retirement benefits (such as pensions, 401(k) plans or individual retirement accounts)
  • Vehicles, RVs or boats
  • Checking and/or savings accounts (during the divorce, get yourself an account in your own name

Note: If you have a lot of property (or a lot of debt), talk to a divorce attorney to make sure you’re making the best choices for your future. Most of us aren’t lawyers and don’t know what issues might come up. For example, you might agree to an unfair division of the debts because you’re tired of fighting and just want this to be over.

Or suppose your spouse gets the family home and doesn’t get your name taken off the mortgage. If at some point the ex stops paying, the lenders can come after you.

Once you’ve agreed on how to divide things up, the judge will typically sign off on the plan. And if you can’t agree on certain things (or anything)? In that case, the judge will decide what is “just and right,” i.e., what’s fair to both people under the circumstances.

How is property divided in a divorce in Utah?

In Utah, the courts use the principle of equitable distribution to divide property during a divorce. This means that the courts ultimately decide what a fair division of property looks like, which differs significantly from how things are done in a community property state.

While each case is handled according to its own merits, in Utah, the longer a marriage, the more likely that marital property and debts will be split as close to 50/50 as possible. For shorter marriages, Utah courts will often seek to return each spouse to the financial position that they enjoyed before the marriage.

How is property divided in a divorce in Vermont?

Vermont is not a community property state. Instead, it follows the model of equitable distribution, which empowers the courts to decide the fairest way of dividing marital property and debts. Though this can result in an equal 50/50 division of all property, that is not guaranteed under Vermont law.

Vermont also differs from other states in how it defines marital property. According to the state, “virtually all property you own is marital property,” including property that was acquired before the marriage and property that one spouse inherits or is gifted during the marriage, which would normally be deemed “separate property” in many other states.

How is property divided in a divorce in Vermont?

Vermont is not a community property state. Instead, it follows the model of equitable distribution, which empowers the courts to decide the fairest way of dividing marital property and debts. Though this can result in an equal 50/50 division of all property, that is not guaranteed under Vermont law.

Vermont also differs from other states in how it defines marital property. According to the state, “virtually all property you own is marital property,” including property that was acquired before the marriage and property that one spouse inherits or is gifted during the marriage, which would normally be deemed “separate property” in many other states.

How is property divided in a divorce in Virginia?

Because Virginia is not a community property state, during a divorce all marital property and debt is divided according to a principle of equitable distribution. This simply means that the courts will determine a fair way of dividing property between you and your spouse. Equitable distribution can result in an even split of all marital property and debts, but this is not guaranteed.

How is property divided in a divorce in Washington?

Washington is a community property state. This means that during a divorce, all marital property and debt is divided equally between both spouses. While Washington recognizes separate property, the courts maintain the right to divide separate property as well as marital property if doing so would be equitable.

How is property divided in a divorce in West Virginia?

West Virginia is not a community property state. This means that during a divorce, the courts will divide all marital property and debts between both spouses in a manner that it deems to be fair. This is called a doctrine of equitable distribution. Equitable distribution may result in, but does not guarantee, an equal 50/50 division of all marital property.

How is property divided in a divorce in Wisconsin?

Wisconsin is a community property state. This means that during divorce, all marital property and debts will typically be divided equally between both spouses. That being said, Wisconsin’s laws do allow the courts to depart from an exact 50/50 split in cases where it deems that doing so would be the appropriate outcome.

How is property divided in a divorce in Wyoming?

In Wyoming, marital property and debts are divided according to a model of equitable distribution during a divorce. This means that the courts will decide what a fair division of property looks like. While a community property state might guarantee a 50/50 split of all property, this is not guaranteed in Wyoming.

Property division in divorce: Common terms

Lawyers get to charge you a lot of money, in part, because together with scary judges, they use words and terminology that everyday people do not. They are not necessarily smarter than you, they are just intimidating. Most people can get through a divorce without high legal fees. Knowing the lingo helps, no matter if you go to court or have an uncontested divorce like most couples.

Here is what you know about property division in divorce:

Community property

Every state has its own law about how property is divided when a couple divorces. When a state defers to community property, this means that any income earned, savings or investments acquired, or property purchased during the marriage belongs equally to both spouses — no matter how much either earned or contributed to the asset. Under community property, spouses own everything equally, regardless of who earns or spends the income. This also applies to debt.

List of community property states

There are nine community property states, though in most cases for most divorces, couples are encouraged to split any assets or debts acquired during the marriage 50-50.

  • Arizona
  • California
  • Idaho
  • Louisiana
  • Nevada
  • New Mexico
  • Texas
  • Washington
  • Wisconsin

Alaska is an opt-in community property state that gives both parties the option to make their property community property.

Equitable distribution

In equitable distribution states, property is divided fairly, not necessarily 50/50. One spouse may receive more in the divorce, while the other may be ordered by the court to give up property. This can be influenced by how much each party earns, how much they contributed financially to the marriage, inheritances, earning potential, length of marriage and other factors.

If you are not fighting over much, you can likely file your own divorce without expensive lawyer fees. Learn more in our reviews of best online divorce papers services.

Equitable distribution states

All states are equitable distribution states, except those community property states noted above.

Marital property

Marital property is anything that is owned jointly by both spouses. This can include real estate, cars, savings, checking and investment accounts, jewelry, furniture or businesses. Marital property can also include debt that was acquired during the marriage, including credit cards, mortgages, business and personal loans, and sometimes student debt.

Marital property consists of possessions spouses obtain during marriage. Assets and debts are marital property. Marital property includes earnings, everything bought with those earnings, and all debts incurred during the marriage.

Marital assets can include:

  • Cars
  • RVs
  • Houses and homes
  • Pensions and benefits
  • Investments, stocks, brokerage accounts
  • Retirement accounts
  • Investment and Airbnb properties
  • Clothing
  • Furniture
  • Businesses
  • Pets

Marital debt can include:

  • Mortgages and home lines of equity
  • Student loan debt
  • Personal loans—including to family members or friends
  • Credit card debt
  • Auto loans
  • Business loans
  • Medical debt

Note: Both marital assets and marital debt are both considered marital property.

Separate property

When it comes to divorce, separate property is anything you own (or owe) that belongs to just one spouse. Separate property can include:

  • Anything you owned before you married
  • Inheritances or gifts one party received during the marriage
  • Assets bought during the marriage by just one spouse but not used by the other (say, a car, jewelry or clothing) — except in community property states
  • Any debts clearly obtained by one spouse for their own purposes, and not both parties
  • Any personal injury awards

Non-marital property or separate property

Non-marital property is personal or separate property. It includes inheritance, gifts, compensation from personal injury, property bought using personal funds, and proceeds of a pension vested before the start of a marriage. A business started before marriage is personal property, but if it increases in value during the marriage, or if the other spouse works at the business, a portion of it may become marital property.

Investment assets, including 401(k) and IRAs, real estate holdings, savings accounts and other assets acquired before the marriage are considered non-marital /separate property. But any contributions to investment funds made during the marriage are likely considered joint property— no matter who earned that money.

Ellevest review — does this roboadvisor really help women get wealthy?

Is jewelry considered marital property?

A common divorce question is:

“Is an engagement ring considered marital property or personal property? What about wedding rings? Is jewelry considered marital property?“

Quick answer: Typically an engagement ring and other jewelry are considered gifts, and the recipient can do with that item as she or he pleases — including selling.

Why you should sell your engagement ring after divorce—and where to do it safely, quickly and for the most cash

Are separate bank accounts consider marital property?

Separate bank accounts can be marital or personal property, depending on when they were opened and if marital funds were deposited in them. If a bank account was created during the marriage, then it’s marital property unless it solely consists of inheritance, gift, or award from a personal injury settlement, suit or benefit. 

If the bank account was created before the marriage, then it’s marital property if wages or marital funds have since been added to it. Otherwise, it’s separate property (keep reading for an explanation of ‘separate property’).

If someone  buys real estate for their spouse solely in the receiving spouse’s name, that property can likely be considered separate, and the owner is the spouse who received the home as a gift. However, legitimate disputes could still arise if there’s a question of whether marital funds were used for the purchase. 

Legal Disclaimer: This article is intended for informational purposes only and should not be relied upon as legal advice on any subject matter. Consult with an attorney for more information regarding your individual situation.

Stacey Freeman has been published in The Washington Post, Entrepreneur, Good Housekeeping, Cosmopolitan, Woman’s Day, Town & Country, Yahoo!, HuffPost, Popsugar and Worthy. She has been quoted in The New York Times, HuffPost, and SheKnows, to name a few. She is also a single mom of three amazing kids. For more information about Stacey, visit www.writeontrackllc.com.

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